Convolve v. Compaq was decided on February 10, 2016 on appeal from the Southern District of New York. There, the district court granted summary judgment of no infringement, and that liability was precluded by intervening rights arising from a December 2, 2008 substantive amendment to the asserted claims. Plaintiff Convolve appealed.
The Federal Circuit partially affirmed and partially vacated the summary grant of non-infringement, and reversed the intervening rights determination.
A patentee of a reexamination patent may recover damages for the period predating the date of the reexamined claims “if the original and the reexamined claims are substantially identical. It is the scope of the claim that must be identical, not that identical words must be used.” So amendments made during reexamination don’t necessarily compel a conclusion that the scope of the claims has been substantially changed, “even where the claims at issue were amended during reexamination after a rejection based on prior art.” Rather, “to determine whether a claim change is substantive it is necessary to analyze the claims of the original and the reexamined patents in light of the particular facts, including the prior art, the prosecution history, other claims, and any other pertinent information.” The district court’s subsidiary factual findings on the scope of the reexamined and original claims are reviewed for clear error, but the ultimate conclusion regarding the scope of the claims is reviewed de novo.
The district court erred in finding damages precluded by intervening rights. The reexamined claims did not alter the scope of the original claims, despite that the patentee added a word to the claims during reexamination after a prior art rejection. “[T]he language of the claims, read in light of the specification and prosecution history” compelled a conclusion that the original and reexamined claims were substantially identical in scope.
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Convolve, Inc. v. Compaq Computer Corp., 812 F.3d 1313 (Fed. Cir. 2016)